What Qualifies as “Opposition” Under Title VII?

Assume all but the most attenuated of responses to a potentially discriminatory statement qualifies as protected, and do not leave it in the hands of judges or juries to draw these nuanced distinctions.

August 22, 2012

Last week, I discussed the limits of Title VII's opposition clause in protecting (or not protecting, as the case may be) employees who make unreasonable or unfounded complaints about discrimination. Today, I am going to discuss another aspect of the opposition clause that can also provide some relief to employers — the specificity of one's opposition to an act of discrimination.

2. After the same vice president made some disparaging remarks about a Latin American employee, Trujillo spoke to the company's Vice President of Human Resources.

The 6th Circuit concluded that only the latter constitutes protected opposition:

We have previously held that advocating for members of a protected class is protected activity for purposes of Title VII retaliation…. Trujillo could have engaged in protected activity if he had complained about Rollins's comment at the time, even though those comments were not directed at Trujillo personally. However, Trujillo's own testimony makes clear that he did not complain to Rollins about the comments at the time they were made. With regard to the "wetback" comment, Trujillo admits that he did not communicate that Rollins's comment offended him, let alone that he was complaining about the racial or ethnic character of the conduct….

In contrast, the district court erred in holding that Trujillo's statement to Gasperut was not in "opposition" to the alleged racial character of Rollins's comments…. We have repeatedly held that complaints to human resources personnel regarding potential violations of Title VII constitute protected activity for purposes of establishing a prima facie case of retaliation…. The fact that it was, as the district court characterized it, an "informal conversation" does not change the nature and purpose of the conversation, which was a "discrete, identifiable, and purposive" opposition to racially-oriented language….

Part of the takeaway from this case is that not every response to a tinged or biased remark qualifies for Title VII's anti-retaliation protections. This case, however, also teaches a different lesson. Opposition can rest in the eye of the beholder. The dissent, for example, would have refused to have protected any of Trujillo's complaints, and would have concluded that he had merely engaged in non-protected venting:

If the plaintiff had complained that such comments constituted discrimination against him, I would have no quarrel with the majority opinion. If plaintiff had in any way intimated that such remarks could constitute discrimination against other people in the company, I would concur. However, plaintiff himself said: "I kind of was just venting. I was not intending for her to take action." … Not every casual remonstrance against bad language equates to complaining of illegal discrimination.

What is the best practice? Assume all but the most attenuated of responses to a potentially discriminatory statement qualifies as protected, and do not leave it in the hands of judges or juries to draw these nuanced distinctions. And, if you have to take action against someone who has arguably engaged in protected opposition, involve counsel in the decision making before you draw yourself into a potential lawsuit.